Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Personnel Cabinet violated the Open Records Act in the disposition of Wade McNabb's October 24, 2007, request for "the entire state personnel files (excluding that information statutorily exempt) pursuant to KRS 18A.020(1) [and] KRS 61.870 to KRS 61.884, for the following persons: Mr. Lewis Nichols, Mr. Clifford Duvall, Mr. Thomas M. Bertram II, and Mr. Jeff Carrington, all employees of the 20th Judicial Circuit in Lewis and Greenup Counties." For the reasons that follow, we find that the Cabinet's disposition of Mr. McNabb's request was largely inconsistent with the requirements of the Open Records Act.
By letter dated November 1, 2007, former Executive Director Thomas B. Stephens notified Mr. NcNabb that the Cabinet was "processing" his request. Continuing, Mr. Stephens observed:
Pursuant to the ruling in Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575 (1994), these individuals have a right to intervene and request that their personnel files and personal information not be released. Accordingly, we are in the process of contacting these individuals and will file a supplemental response once notice is received from these individuals.
In correspondence directed to this office following commencement of Mr. McNabb's appeal, which was also intended to serve as its supplemental response to his request, Mr. Stephens elaborated on the Cabinet's position. He advised that the Cabinet "does not maintain the personnel file of Judge Lewis Nicholls," and furnished Mr. McNabb with the name and location of the custodial agency. 1 With reference to the remaining employees and their personnel files, Mr. Stephens explained:
The Cabinet is responsible for maintaining the official personnel file of all state employees. Prior to the release of their personnel files, the Cabinet is advising each individual of the request it received by an inmate. According to the clear language of Beckham, these individuals have standing to request the non-disclosure of these records. As affected parties, they have the right to assert the "personal privacy exclusion" under KRS 61.878(1). Id. at 579.
In addition, the agency to which the request has been made has the right to assert this exclusion on an individual's behalf. See Beckham at 578. While the Beckham case addresses the standing of the affected individuals who file a legal suit in the Circuit Court to enjoin the release of the documents, the legal analysis in this situation is the same. These employees have a personal stake in these requests; they could file a separate lawsuit to seek their appropriate remedies, and therefore can properly intervene in the requested disclosure at this stage as well.
It was the Cabinet's position that "the facts of this case clearly violate KRS 61.878(1) [sic]" insofar as the requester is an inmate "seeking the personnel files of the very individuals responsive for incarcerating criminals" and "the potential threat of the misuse of this information strongly outweighs an inmate's right to public information."
Alternatively, the Cabinet argued that because the issue now before us is under review by the Franklin Circuit Court in the Cabinet's appeal of 07-ORD-175, Commonwealth of Kentucky, Personnel Cabinet v. Gregory Valentine, Division I, Civil Action No. 07-CI-1502, and "[t]he facts surrounding the request which resulted in that litigation are the same as those posed herein ," this office "should defer to the Franklin Circuit Court to substantively determine the open records question now before it in this appeal." The Cabinet noted that "a second appeal has been deferred to the jurisdiction of the Circuit Court. See 07-ORD-217)[.]" 2 Because neither the parties to, nor the issues in, the instant appeal are identical to the parties and issues before the Franklin Circuit Court in the Cabinet's appeal of 07-ORD-175, and Mr. McNabb is an inmate, who, pursuant to KRS 197.025(3) 3 may well be statutorily required to exhaust his administrative remedies before proceeding to circuit court on an open records appeal, we respectfully decline the Cabinet's request.
It is the decision of this office that 07-ORD-175 is dispositive of the primary issue presented in Mr. McNabb's appeal. A copy of 07-ORD-175 is attached hereto and incorporated by reference. In that decision, the Office of the Attorney General determined that the Cabinet's blanket denial of an open records request for identical records relating to a different public employee violated the Open Records Act. There we recognized that the Cabinet could, and properly should, redact or withhold in their entirety the social security numbers, home addresses, home telephone numbers, marital status, dates of birth, medical records, evaluations, and any other records unrelated to the employee's job qualifications or performance on the basis of KRS 61.878(1)(a). We relied on a line of open records decisions dating back to 1976 and the underlying premise that "a person does not typically work, or attend school in secret, and . . . the employee's privacy interest in such information is outweighed by the public's right to know the employee is qualified for public employment," in determining that the remainder of the requested personnel file must be disclosed, 07-ORD-175, p. 8, citing 93-ORD-32, p. 3. 4
Affirming the public's general right of access to personnel files of public agency employees, the Kentucky Court of Appeals recently went one step further and required the disclosure of nonpersonal information in the performance evaluations of public employees where circumstances warrant. Cape Publications of Louisville, 191 S.W.3d 10 (Ky. App. 2006). While we are unaware of any unique circumstances warranting disclosure of nonpersonal information in the performance evaluations of the public employees whose personnel files are in dispute in the instant appeal, we believe that this case signals the court's commitment to insuring the public's right to know that "public servants are indeed serving the public. . . ."
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 328 (Ky. 1992). From this, we can infer that the judicial trend is in favor of, rather than opposed to, greater rights of public access. The Cabinet's position is at odds with this trend.
As for the Cabinet's argument that the "potential [for] misuse" by inmates of information about the public employees who played a role in their incarceration is greater, and the privacy interests implicated by disclosure therefore superior to the public's interest in insuring that those employees possess the requisite qualifications and are "indeed serving the public," we find no empirical evidence in the record on appeal supporting this claim. Simply stated, no proof is presented that an inmate's knowledge of a public employee's educational background, licensure information, years of service, etc., exposes that employee to a greater risk of information "misuse. " We remind the Cabinet that both the Kentucky State Police and the Education Professional Standards Board have recognized their obligation to release educational and work-related records pertaining to, respectively, the forensic examiner who was responsible, at least in part, for incarcerating the requesting inmate and the victim of the crime for which the requesting inmate was convicted and incarcerated. See correspondence dated August 16, 2007, and 07-ORD-207 (enclosed). We see no appreciable difference in the privacy interests implicated by disclosure.
We disagree with the Cabinet's interpretation of Beckham for the following reasons. In Beckham, the court held that a party affected by a public agency's decision to release records in response to an open records request has standing to contest the agency's decision in court. The court focused on the language of KRS 61.882(1) granting the circuit court of the county where the agency has its principal place of business or where the record is maintained jurisdiction to enforce the Open Records Act "by injunction or other appropriate order on application of any person." Declining the invitation to construe KRS 61.882(1) as a remedy for denial of access only, the court held that "the language used is without any such limitation" and that it would be anomalous to "disregard plain statutory language to conclude that an affected party who may possess a right to have documents excluded lacks standing to assert that right." Beckham at 578 and 579. "It would appear," the court noted, "that the General Assembly sought to promote disclosure by devising easy means toward that end, but left the door ajar for those who seek to prevent disclosure by granting them a litigation remedy to enforce the exclusions." Id. at 578. The Supreme Court concluded that the parties affected by disclosure, "having commenced litigation prior to release of the information sought, were entitled to be heard on their exclusion claims and entitled to appellate review of the merits in the Court of Appeals." Id. at 579.
In
Lexington-Fayette Urban County Government v. Lexington Herald-Leader, 941 S.W.3d 469 (Ky. 1997), the court held that a privacy claim advanced by the public agency to support nondisclosure of settlement agreements containing confidentiality clauses was "simply insufficient to overcome the public's right of access to information of this type." Id. at 472. Drawing upon the line of cases construing the privacy exception, the court identified as its primary concern "the nature of the information which is the subject of the requested disclosure; whether it is the type of information about which the public would have little or no legitimate interest but which would be likely to cause serious personal embarrassment or humiliation." Id. at 473. The court found no indication in the record that "significant privacy rights of the settling plaintiffs" were implicated. Nevertheless, the court again left the "door ajar for those who seek to prevent disclosure. " Beckham at 578.
Focusing on the duties of a public agency when a third party is affected by disclosure of agency records, in 98-ORD-24 this office opined:
Clearly, Beckham establishes that a party affected by an agency's decision to release records has standing to contest the decision in court under the plain meaning of KRS 61.882(1). The court exhaustively documents the herculean efforts of the affected parties to prohibit the agency from releasing the records relating to them. In Lexington-Fayette Urban County Government, the court emphasized that under Beckham it is the affected party who, upon receipt of notice that a request has been made, must "take such further action as he deems appropriate." It is not incumbent on the agency to "force [the affected party's] hand" or compel him "to articulate his reason for wanting the document to remain confidential."
It is instead incumbent on the public agency to responsibly discharge its duties under the Open Records Act. The "right of persons who might be affected by the release of governmental information to be heard on their privacy claim, " which was recognized in Beckham and Lexington-Fayette Urban County Government, is triggered when a public agency expresses its intention to disclose that information, and the affected parties commence litigation prior to disclosure. Lexington-Fayette Urban County Government at 472. It cannot be employed by a public agency to avoid its duties under KRS 61.880(1) to "determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of [a] request whether to comply with the request and . . . notify in writing the person making the request, within the three (3) day period, of its decision."
Thus, Beckham does not provide independent authority for a public agency's nondisclosure of a public record, but is instead grounded in existing statutory language, namely, KRS 61.882(1). The Personnel Cabinet having apparently notified the affected public employees about Mr. McNabb's request, and those employees having apparently failed to contest disclosure in the appropriate circuit court, we find that the Cabinet is obligated to disclose the records, based on the foregoing analysis, or appeal this decision to the appropriate circuit court. Its discharge of the requirements of the Open Records Act are not indefinitely suspended while the affected employees weight their options. Accord 98-ORD-24; 00-ORD-5. And, as noted above, the Attorney General's discharge of his statutory duty cannot be deferred while some of the issues presented in this appeal await resolution in the courts. 06-ORD-184; 06-ORD-230; 07-ORD-132.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 We affirm the Cabinet's disposition of this portion of Mr. McNabb's request on the basis of KRS 61.872(4). The Cabinet notified Mr. McNabb that it did not maintain records responsive to this request and provided him with the name and location of the custodial agency as required by that statute.
2 07-ORD-217 also involved Gregory Valentine and the Personnel Cabinet.
3 KRS 197.025(3) thus provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, all persons confined in a penal facility shall challenge any denial of an open record with the Attorney General by mailing or otherwise sending the appropriate documents to the Attorney General within twenty (20) days of the denial pursuant to the procedures set out in KRS 61.880(2) before an appeal can be filed in a Circuit Court.
4 Given this determination, we must assume that the narrow issue currently before the court is, inter alia, whether an inmate may properly be denied access to personnel records in a public employee's file reflecting on his job qualifications and performance.